Citation NR: 9718177
Decision Date: 05/23/97 Archive Date: 06/03/97
DOCKET NO. 94-41 859 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a dermatological
disorder to include chloracne claimed as secondary to
exposure to Agent Orange.
2. Entitlement to service connection for residuals of a
fractured right leg.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from July 1968 to January
1970.
This appeal to the Board of Veterans’ Appeals (the Board) is
from rating action by the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Petersburg.
CONTENTIONS OF APPELLANT ON APPEAL
In substance, it is argued that the veteran developed a skin
problem, diagnosed as chloracne, in or as a result of in-
service exposure to Agent Orange, and that service connection
is warranted.
It is also argued that the appellant broke his right leg in
combat and that he is now entitled to compensation for
residuals of that injury.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claims for service
connection for a dermatological disorder to include chloracne
claimed as secondary to exposure to Agent Orange and for
residuals of a fractured right leg are not well grounded.
FINDING OF FACT
The claims for service connection for a dermatological
disorder to include chloracne claimed as secondary to
exposure to Agent Orange and for residuals of a fractured
right leg are not supported by cognizable evidence showing
that the claims are plausible or capable of substantiation.
CONCLUSION OF LAW
The claims for service connection for a dermatological
disorder to include chloracne claimed as secondary to
exposure to Agent Orange and for residuals of a fractured
right leg are not well grounded. 38 U.S.C.A. § 5107 (West
1991 & Supp. 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran’s entrance examination dated in June 1968 noted
no history or clinical findings of a right leg disability or
skin disorder including acne.
A log of each of the veteran’s locations during service was
obtained by the National Personnel Records Center (NPRC). He
participated in Operations BOLD MARINER and RUSSELL BEACH in
Quang Ngai Province from January 16 to February 9, 1969;
Operation DEFIANT MEASURE from February 10-11, 1969 in Quang
Nam Province; and Operation TAYLOR COMMON in Quang Nam
Province from February 12 to February 18,1969, when he was
hospitalized.
Service medical records confirm that on February 18, 1969,
the veteran was seen at the Battalion Aid Station, for a
“sprained left ankle”. He was said to have been dodging
enemy fire while on a search and clear mission during
Operation TAYLOR COMMON. The NPRC log shows that he had been
treated from February 18 to March 2, 1969, having been
hospitalized as the NSA, Da Nang, after which he was returned
to Operation TAYLOR COMMON until March 8, 1969.
The NPRC log shows that the veteran participated in Operation
OKLAHOMA HILLS in Quang Nam Province from March 31 to May 3,
1969 and was involved in operations against the enemy from
May 4, 1969 to December 27, 1969.
During that latter time, on May 23, 1969, while specifically
assigned to the USS PAUL REVERE, he complained of an ulcer on
the right lower leg over the past 2 1/2 weeks as a result of
a leech bite. He had been seen by his platoon corpsman and
given a dressing and ointment. On examination, there was an
ulcer on the lateral right leg. He was told to clean it
daily and apply a dressing.
On the separation examination, dated in January 1970, no skin
disorder was noted and there was no history of or evidence of
residuals of a right leg disability including fracture.
Service records show no complaints or clinical findings of
residuals of a fracture of the right leg or skin problems.
Verification by the National Personnel Records Center (NPRC)
in 1981 was to the effect that the veteran had had no known
exposure to herbicides.
In 1981, the veteran filed a VA Form 21-526 claiming that he
had fractured his left leg above the ankle while in combat in
Vietnam, that he had developed a heat rash all over his body,
and that he had been exposed to Agent Orange.
VA outpatient treatment records from May 1981 show that the
veteran complained of acne scarring from “teenage years”. A
few .5 to 1 cm. acne cysts were shown. He said he would
still get an acne lesion on occasion. When he was seen in
July 1981, he was found to have multiple acne scars, one
papule and one cyst. Again one of the cysts was injected as
had been done earlier. A dermatology clinic notation was
that he was found to have mild acne with residual
hyperpigmentation and scarring. It was noted these “appear
to be unrelated to Agent Orange - present prior to service”.
It was suggested that 10% Benzoyl peroxide be continued.
VA outpatient records from 1989 and 1990 show herpes zoster
(shingles). The veteran had had human immunodeficiency virus
(HIV) diagnosed in the late 1980’s. On one occasion in 1990,
he had reported a lesion on his cheek; a scar was seen but no
active lesion.
Private treatment records from March 1989 show a longitudinal
scar on the right anterior thigh and psoriasis on the
veteran’s face and chin. Further private treatment records
from September 1991 show care for seborrhea. Another
notation in September 1991 was that he had two completely
well-healed scars on his shoulders as a result of human
bites, as well as thrush and seborrheic dermatitis. Later
that month, the oral thrush lesion had cleared, but he had
what was described as eczema.
A document is of record from NPRC dated in 1990 to the effect
that the veteran’s claimed “right” ankle sprain did not
qualify him for a Purple Heart.
On a VA Form 21-526, filed in August 1990, the veteran
claimed that he had fractured his right leg while in Cam Ranh
Bay, Vietnam in 1969.
On a VA examination in January 1991, the veteran reported
having been exposed to Agent Orange in service. He said he
had developed an acneiform lesion involving both cheeks and
had been under care with some improvement. On examination,
he showed a butterfly-shaped involvement of both cheeks,
extending laterally from the bridge of the nose. The
examiner noted that there were numerous millimeter sized
verrucous hyperkeratotic areas, but “no chloracne present”.
On the 1991 VA examination, the veteran reported, in
pertinent part, that he had experienced a through and through
gunshot wound in the right femur in 1986. He was shown to
have healed wounds of entrance and exit, and a healed
postoperative scar along the right femoral triangle. He had
also had a gunshot wound to the scrotum. Pertinent diagnoses
were residuals, acne, cheeks, with seborrheic dermatitis; and
residuals, gunshot wounds, of the right thigh and scrotum.
While hospitalized by VA in February and March 1991 [for
mixed substance abuse, HIV, tuberculosis and PTSD], VA
dermatology clinic evaluative records dated in February 1991
showed that the veteran said he had been getting treatment
for “chloracne”. The examiner noted a history of seborrheic
dermatitis of the face for which he had received medications
with good results. He still had some flaking and scaling of
the nasolabial folds between his eyebrows, and a history of
scaling of the scalp. There were multiple pitted areas on
his cheeks and beard area and minimal scaling between the
eyebrows and nasolabial folds with scaling of the scalp.
Diagnosis was seborrheic dermatitis; the pitted scars were
said to be old and unrelated.
VA outpatient records from September 1991 show complaints of
an itching, nonburning facial rash for 2-3 weeks. The
appellant stated he had similar problems, on and off, for
several years. The examiner found a facial rash with pale
white-grayish, dry macular lesions as well as a small
ulcerated lesion on the right side of the tongue. The former
was diagnosed as seborrheic dermatitis and the latter was
Kaposi’s sarcoma (secondary to the HIV).
At the hearing held in June 1992, the veteran testified that
he had been subjected to Agent Orange spray and in his
drinking water the whole time he was in Vietnam and that he
developed a rash all over his body as a result. Tr. at 1-2.
He said he had had it periodically ever since, and had been
told that it was chloracne, and that it involves portions of
his whole body. Tr. at 4, 12-13. He said that he fractured
his leg when he was in combat in January 1969 by jumping in a
bomb crater. Tr. at 9, 11. He said he was put in a cast at
that time. Tr. at 4, 17-18. He said he had been shot in
1986 in the thigh in the same leg. Tr. at 10-11. He said
he had been given the Purple Heart for the leg fracture but
NPRC had later denied it. Tr. at 16-17.
After the hearing, the veteran submitted duplicates of many
of the private treatment records. He also submitted a
statement of private treatment from September 1990 to April
1993, signed by MM, M.D. The diagnoses were immune
deficiency, PTSD, and status post fracture of the fibula.
Subjective symptoms included right ankle pain and a history
of facial rash and scaling. The veteran’s limitations were
described as being secondary to the fracture of the right leg
and he was to have no prolonged standing. Regarding general
physical impairment, the physician stated that as of April
1993, the Class 4 limitation was due to fracture of the right
fibula. “He is still in a light cast and is unable to stand
for prolonged periods. This is expected to be resolved in
the next 2 months”. Associated clinical records were
attached showing progress notes.
On occasion, the veteran was treated for facial skin problems
and herpes zoster. During the overall ongoing treatment for
immune suppression, extensive testing was undertaken. On no
occasion was there a diagnosis of chloracne, although another
similar document was received from a private physician, dated
in 1992 showing that the veteran exhibited a severe rash on
his face and diagnosis was seborrheic dermatitis and
pustules. The veteran had given a history of old chloracne.
The veteran also submitted an undated photo of himself
holding an award/medal box with a Purple Heart enclosed;
crutches are seen behind the bed. On the back of the photo,
there is an inscription of greetings to his family, signed by
the veteran, stating that he was then in the hospital.
On a VA psychiatric examination in 1993, the veteran
collaterally reported that he had fractured his right leg in
combat.
On several occasions, NPRC has endeavored to clarify awards,
service dates and locations, etc. These records including
logs are now all in the file, including several copies of the
veteran’s DD 214, none of which show the award of a Purple
Heart.
Criteria and Analysis
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, one which is plausible and meritorious on its
own or capable of substantiation. If he has not, the appeal
must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet.App. 78 (1990).
Service connection may be granted for chronic disability
which was incurred in or aggravated by active service, one
which may be presumed to have been incurred during such
service, or one which was proximately due to or the result of
a service-connected disability. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1137, 5107 (West 1991 & Supp. 1996); 38 C.F.R.
§§ 3.303(b), (d), 3.307, 3.309, 3.310(a), (1996).
The provisions of 38 U.S.C.A. § 1154 require that in each
case where a veteran is seeking service connection for any
disability, due consideration shall be given to the places,
types, and circumstances of such veteran's service as shown
by such veteran's service record, the official history of
each organization in which such veteran served, such
veteran's medical records, and all pertinent medical and lay
evidence. Horowitz v. Brown, 5 Vet.App. 217, 221 (1993).
However, that same law permits that clear and convincing
evidence to the contrary rebuts any such presumption.
Moreover, it remains the duty of the Board as the factfinder
to determine credibility of the testimony and other lay
evidence. See Culver v. Derwinski, 3 Vet.App. 292, 297
(1992).
The Board is not bound to accept a veteran’s uncorroborated
account of his Vietnam experiences in the face of objective
evidence which indicates that those experiences did not take
place. Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992)
(quoting Wood v. Derwinski, 1 Vet.App. 190, 192 (1991),
reconsideration denied per curiam, 1 Vet.App. 406 (1991)).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection.
The presumptive provisions of the statute and VA regulations
implementing them are intended as liberalizations applicable
when the evidence would not warrant service connection
without their aid. See Horowitz v. Brown, 5 Vet.App. 217,
222 (1993).
Lay persons are not competent to render testimony concerning
medical causation. See Grottveit v. Brown, 5 Vet.App. 91, 93
(1993). Service connection may be established through
competent lay evidence, not medical records alone. Horowitz
v. Brown, op. cit. But a lay witness is not capable of
offering evidence requiring medical knowledge. Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992).
And just because a physician or other health professional
accepted a veteran’s description of his Vietnam experiences
as credible, and diagnosed a given disability as a result
thereof, does not mean the Board must follow suit. The Board
has the duty to assess the credibility and weight to be given
the evidence. Wilson v. Derwinski, 2 Vet.App. 614, 618
(1992) (quoting Wood v. Derwinski, 1 Vet.App. 190, 193
(1991), reconsideration denied per curiam, 1 Vet.App. 406
(1991)).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected...even though there is no record of such
diseases during service...chloracne or other acneiform
disease consistent with chloracne, Hodgkin’s disease,
multiple myeloma, non-Hodgkin’s lymphoma, prostate cancer,
acute and subacute peripheral neuropathy, porphyria cutanea
tarda, respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea), or soft-tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or
mesothelioma). 38 C.F.R. § 3.309(e) (1996). [emphasis
added].
A well-grounded claim requires three elements: (1) medical
evidence of a current disability, (2) lay or medical evidence
of a disease or injury in service, and (3) medical evidence
of a link between the current disability and the in-service
injury or disease. Caluza v. Brown, 7 Vet.App. 498 (1995).
Chloracne
Service records show no signs of exposure to Agent Orange,
and the NPRC concluded in 1981 that there was no affirmative
evidence to show that the veteran had been exposed to Agent
Orange while in Vietnam. However, since then, certain new
presumptions have been enacted into law. Accordingly, under
current regulations, the Board does not dispute that the
veteran may have been exposed to Agent Orange and/or other
herbicides in view of his service in Vietnam primarily in I
Corps.
However, the question remains whether the veteran acquired a
skin disorder, specifically chloracne, as a result of the
presumed exposure to Agent Orange.
In that regard, while the RO previously held that the
veteran’s acne predated service, his service records are
devoid of any evidence of acne. However, the veteran first
identified a history of teenage acne when treated for that
disorder in 1981, some years after service.
There is no question but that since 1981, the veteran has
manifested evidence of “old” acne with periodic cysts,
pustules and some scarring. However, he has also been
specially examined on several occasions and specifically
determined not to have chloracne. The only references in the
clinical record to chloracne are based upon the veteran’s own
history, given at the time of various treatments.
At any rate, since service, he has been treated for a variety
of skin disorders, variously diagnosed as eczema, cellulitis,
verrucous hyperkeratoses, seborrheic dermatitis, and most
recently, herpes zoster (shingles), oral thrush and Kaposi’s
sarcoma due to his immunosuppression. There is no basis for
finding that any of his postservice dermatological problems
are in any way due to service, or that, specifically, the
veteran has chloracne which may be attributed to service
under any regulatory premise.
Right leg fracture
The veteran has, at one time or another, argued that he broke
his left or right leg in service, while in combat, and was
hospitalized for a period of time thereafter with casting,
etc. This is simply not confirmed by the service
documentation. On the contrary, the clinical evidence is
clear that the veteran sprained his left ankle in mid-
February 1969; and he had an ulcer on his right lower leg due
to a leech bite in May 1969. He received brief and
conservative care on both occasions and returned to his
regular military responsibility.
While he was indeed in a combat-impacted situation when he
sprained his left ankle, there is no collateral evidence to
show that he broke the leg then or at any other time in
service; that it involved the right rather than the left leg;
or that he was shot in the right leg (causing a break in the
fibula or femur) at any time in service. And while the
veteran has recently submitted a photo which purportedly
shows him apparently sitting in a bed, holding a Purple
Heart, with crutches visible behind him, the NPRC and other
sources have consistently and repeatedly been unable to
document that he ever received a Purple Heart, and multiple
copies of his DD 214 are negative for same. And further,
even if he did receive a Purple Heart, there is no
documentation of any kind to associate that award with a
fractured right leg in service from which he now experiences
residuals.
On the other hand, post-service clinical records show at the
very least, the veteran experienced one or more intercurrent
injuries to the right leg, i.e., a through-and-through
gunshot wound to the right femur in 1986 for which he had
surgery and now exhibits post-surgical scarring. And
further, when examined by a private physician in 1993, he was
said to be limited in his current movements due to a right
leg fracture; he was at that time in a light cast for a
broken right fibula and would not be mobile for another two
months. In neither case is there any objective evidentiary
corroboration to associate these right lower extremity
injuries to service or any incident therein.
Parenthetically, the Board would note that if all other
evidence was equal, there would be no particular problem with
correcting any inadvertent substitution of “right” for “left”
with regard to a leg fracture. See, i.e., Gifford v. Brown,
6 Vet.App. 269 (1994). However, absent any objective sign of
any leg fracture in service, it makes no difference in this
case which leg was or is now claimed.
The Board notes that despite the contentions presented on
appeal, the claimant has not submitted any competent medical
evidence to show that under any of the various laws and
regulations pertaining hereto, he is entitled to service
connection for chloracne or a right leg fracture.
Accordingly, the claims for entitlement to service connection
for both, including a skin disorder as secondary to Agent
Orange exposure, are not well grounded and must be denied.
The appellant’s claim with regard both a right leg fracture
and particularly, with regard to a skin disorder, is based
solely on his own opinion and he is not competent to give a
medical opinion on causation, diagnoses, or related matters
pursuant to Espiritu v. Derwinski, op. cit. There is
absolutely no competent medical evidence or authority of
record to substantiate such a claim.
In light of the implausibility of the appellant’s claim and
the failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny the appeal for service connection for
either disorder.
It is the judgment of the Board that the appellant has failed
to meet his initial burden of submitting evidence of well
grounded claims for entitlement to service connection for a
skin disorder including chloracne as secondary to Agent
Orange exposure, or residuals of a right leg fracture. If a
claim is not well grounded, the Board has no jurisdiction to
adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17
(1993).
In reaching this decision, the Board notes that the United
States Court of Veterans Appeals (Court) has held that there
was some duty to assist the appellant in the completion of an
application for benefits under 38 U.S.C.A. § 5103(a) (West
1991 & Supp. 1996), depending on the particular facts found
in each case. Beausoleil v. Brown, 8 Vet.App. 459 (1996);
Robinette v. Brown, 8 Vet.App. 69 (1995). The facts and
circumstances of this case are such that no further action is
warranted.
ORDER
The veteran not having submitted well grounded claims for
service connection for a dermatological disorder to include
chloracne claimed as secondary to exposure to Agent Orange
and for residuals of a fractured right leg, the claims are
denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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